Most employers know the Americans with Disabilities Act (ADA) requires you to provide a reasonable accommodation for a qualified disabled employee. But did you know that even if an employee doesn’t have an ADA-covered disability, their request for a reasonable accommodation may still be a protected activity?
Work Conflicts Aggravate ADD
Stephen Wright, a sales manager at a CompUSA store in Brighton, Massachusetts, was diagnosed with Attention Deficit Disorder. He eventually began suffering from stress and anxiety, and experienced a panic attack at work because of a personality conflict with the store’s general manager, Gregory Caughman.
Requested Accommodations Denied
While on a two-week medical leave of absence, Wright requested either a transfer to a different store or permission to work from home. CompUSA denied both requests.
When he returned to work, Wright gave CompUSA a letter from his psychiatrist with recommendations on how Wright’s condition could be accommodated at work. However, Caughman allegedly continued to issue orders to Wright that were contrary to the doctor’s suggested accommodations.
Employee Fired For Insubordination
Less than a week after Wright returned from leave, Caughman fired him for insubordination in connection with a meeting Wright missed for reasons unrelated to his medical condition. Wright allegedly didn’t follow Caughman’s telephone orders regarding how to follow up to obtain materials from the meeting.
Wright sued, claiming he was discriminated against under the ADA based on his disability. He also charged that CompUSA’s real reason for firing him was because he had requested a reasonable accommodation.
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No Disability, But Possible Retaliation
A federal appeal court rejected Wright’s claim that he was disabled under the ADA. The court, however, went on to rule Wright could take his retaliation claim to a jury. According to the court, requesting an accommodation under the ADA is a protected activity, regardless of whether the underlying medical condition is an ADA-covered disability. It is illegal to retaliate against an employee who engages in a protected activity under the ADA.
In this case, Wright’s firing almost immediately after he returned from medical leave and requested an accommodation suggested retaliation. Moreover, the company’s assertion that Wright was fired for insubordination was undermined by the fact that although Wright didn’t follow Caughman’s directions, he did obtain the materials from the meeting he missed.
Avoiding Retaliation
Retaliation claims can be easy to prove because the employee need only show they complained or exercised a protected right and you subsequently took adverse action against them. That evidence raises the inference that you acted because of the complaint or other protected activity.
Here’s what you can do to minimize your risk of getting hit with an ADA retaliation claim:
- Educate supervisors. Explain that it is illegal to retaliate against an employee who exercises any rights under state or federal disability bias law, regardless of whether the employee’s condition is a protected disability. Supervisors should also know that under California law they could be personally on the hook for damages for retaliation claims.
- Designate experienced staff to handle ADA issues. Refer accommodation requests to HR staff who have been trained in how to comply with disability bias laws.
- Require higher-level review. An uninvolved higher-level manager should carefully review discipline and termination decisions involving an employee who has requested an accommodation, taken medical leave, or complained about bias.
- Keep scrupulous records. Never discipline or terminate an employee who has exercised a right under the ADA without documenting the legitimate reasons for your decision. And be sure to let an appropriate amount of time pass between the employee’s request or complaint and a legitimate adverse action.